Citation Nr: 1335013 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-30 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Karl A. Kazmierczak, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from June 1994 to May 1996. This matter comes to the Board of Veterans' Appeals (Board) from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The issues of entitlement to service connection for a left wrist disability and entitlement to a total disability evaluation based upon individual unemployability (TDIU) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See representative's written statement of June 2013; see also BVA hearing transcript, p. 17. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. In June 2013 the Veteran was provided a hearing before the Board. A transcript of the testimony offered at this hearing has been associated with the record. At the Board hearing, the Veteran requested that the record be held open for 30 days to allow for the submission of additional evidence, particularly records related to a worker's compensation claim. See 38C.F.R. § 20.709 (2012). No additional evidence has been received. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran asserts that he incurred disabilities of the left shoulder and left knee in service when he was involved in a motor vehicle accident in service. A review of his service treatment records documents that he was indeed involved in a motor vehicle accident in July 1995. The records do not, however, note diagnosed injury to the left knee and left shoulder. Yet, the Veteran complains of having had left knee and left shoulder pain since the injury. See Multiple Impairment Questionnaire from Dr. J.R. in Social Security Administration (SSA) records. He has been assessed as having disability of the left shoulder and left knee, including osteoarthritis, which has been indicated as related to his in-service motor vehicle accident. See e.g. June 2011 VA note from Toledo Community Based Outpatient Clinic (CBOC). These circumstances satisfy the low threshold for obtaining a VA examination as contemplated by McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, a VA examination is necessary to decide the present claims. In furtherance of attempting to substantiate the claims, the Veteran's attorney submitted written argument in June 2013. In the written argument, the attorney references a September 1, 2010, letter from Dr. Linares, which purports to link the currently claimed disabilities to service. However, a review of the claims file, to include the Virtual VA paperless claims system, fails to disclose the presence of any such letter, despite the attorney's indication that such a letter had already been submitted. Upon remand, the Agency of Original Jurisdiction (AOJ) is directed to invite the Veteran and his attorney to submit this letter. The representative also indicated that workers compensation records would be submitted, however, such have not been received. Also, in the attorney's written argument, he indicated that the Veteran receives fairly regular VA treatment. The latest VA records that have been associated with the claims file are dated in May 31, 2013. Thus, up-to-date treatment records should be obtained on remand. See 38 U.S.C.A. § 5103A(c) (West 2002) & Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Lastly, the Board notes that the Veteran is claiming service connection for his left shoulder and left knee conditions as secondary to several service-connected disabilities. Accordingly, the Veteran should be provided notice on how to substantiate a claim on a secondary basis. See 38 C.F.R. § 3.310 (2013). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran with VCAA notice that notifies him of the information and evidence not of record that is necessary to substantiate a claim for service-connection of a condition on a secondary basis. This notice must also inform the Veteran of which information and evidence, if any, that he is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on his behalf. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. In this letter, also request that the Veteran and/or his attorney submit the September 1, 2010, letter from Dr. Linares that is referenced in the attorney's June 2013 written argument. In addition, the Veteran and/or his attorney should be asked to submit the Workers Compensation records that were referenced during the Board hearing and any other records relevant to his claims that are not already of record. Alternatively, the Veteran should be advised that VA will attempt to obtain evidence on his behalf, provided he executes the necessary release, i.e. VA Form 21-4142. In any event, provide the Veteran VA Form 21-4142s, should he desire VA's assistance. 2. Attempt to obtain any VA medical records not currently associated with the claims file and associate them therewith, particularly any records dated after May 31, 2013. Perform any and all follow-up as necessary, and document negative results. 3. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for a VA examination to address the nature and etiology of his claimed disabilities of the left knee and left shoulder. The examiner must obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. The claims folder must be made available for review in conjunction with the opinion. The examiner should address the following questions: a) Is it at least as likely as not (i.e. a 50 percent probability or greater) that disabilities of the left knee and left shoulder was/were incurred during service or is/are otherwise etiologically related to service, particularly his July 1995 motor vehicle accident? b) If, for any disability of the left shoulder, the examiner finds that it is less likely than not that the Veteran has any such disability that is etiologically related to service, is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's service-connected hyperesthesia and weakness of the right upper extremity, traumatic arthritis of the lumbar spine with right scoliosis, and traumatic arthritis of the cervical spine with right scoliosis, either singularly or in concert, caused any currently diagnosed disability/ies of the left shoulder? c) If it is determined that any diagnosed disability/ies of the left shoulder was/were not caused by service-connected disability/ies, the examiner should opine whether it is at least as likely as not that any currently diagnosed disability/ies of the left shoulder has/have been aggravated (that is, permanently worsened) by the service-connected hyperesthesia and weakness of the right upper extremity, traumatic arthritis of the lumbar spine with right scoliosis, and traumatic arthritis of the cervical spine with right scoliosis, either singularly or in concert, beyond natural progression, and if so, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. d) If, for any disability of the left knee the examiner finds that it is less likely than not that the Veteran has any such disability that is etiologically related to service, is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's service-connected traumatic arthritis of the lumbar spine with right scoliosis, traumatic arthritis of the cervical spine with right scoliosis, and hyperesthesia of the right lower extremity, either singularly or in concert, caused any currently diagnosed disability/ies of the left knee? e) If it is determined that any diagnosed disability/ies of the left knee was/were not caused by service-connected disability/ies, the examiner should opine whether it is at least as likely as not that any currently diagnosed disability/ies of the left knee has/have been aggravated (that is, permanently worsened) by the service-connected traumatic arthritis of the lumbar spine with right scoliosis, traumatic arthritis of the cervical spine with right scoliosis, and hyperesthesia of the right lower extremity, either singularly or in concert, beyond natural progression, and if so, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. A complete rationale for any opinion expressed must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship or a finding of aggravation; "less likely" weighs against the claim. 4. Thereafter, the issues on appeal should be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his attorney should be provided with a Supplemental Statement of the Case (SSOC) and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).